Vincent and Secretary, Department of Health (Social services)

Vincent and Secretary, Department of Health (Social services) [2019] AATA 4950 (22 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1061
Re:George Vincent
APPLICANT

AndSecretary, Department of Health
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:22 November 2019
Place:Brisbane

The decision under review is affirmed.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Aged Care –whether certain asset to be disregarded in aged care fee assessment – decision under review affirmed
LEGISLATION
Aged Care Act 1997 (Cth)
REASONS FOR DECISION
Member D K Grigg
22 November 2019
INTRODUCTION AND CLAIM HISTORY

Mr George Vincent is currently 95 years of age and is a recipient of a veterans service pension, having served in World War II. Ms Julie Vincent, Mr Vincent’s daughter, represented her father at the hearing.
Between 1992 and January 2018, Ms Vincent lived with and cared for her parents in their home in Hollywell (“Hollywell Property”). In 2015 Ms Vincent left her employment in order to care for her father on a full-time basis and applied for the carer’s allowance.[1]
[1] Exhibit 2, T Documents, T1.1, pages 6 – 8, Attachment: Statement of the Applicant.
On 13 April 2016 Ms Vincent was appointed as an enduring power of attorney, effective 28 July 2016, in relation to her parents financial and personal/health matters.[2]
[2] Exhibit 2, T Documents, T4 – T5, pages 30 – 69, Enduring Powers of Attorney dated 13 April 2016.
On 28 July 2016 the Department of Veterans Affairs (“DVA”) acknowledged Ms Vincent’s appointment as enduring power of attorney and provided her with information regarding her father’s obligations to ensure that his rate of pension and aged care subsidies were correctly paid.[3] The DVA has been delegated power by the Respondent to make decisions pursuant to section 44-26C of the Aged Care Act 1997 (Cth) (“the Act”).[4]
[3] Exhibit 2, T Documents, T6, pages 70 – 71, Letter from Department of Veterans Affairs dated 28 July 2016.
[4]Exhibit 2, Supplementary T Documents, ST2 – ST3, pages 224 – 228, Instruments of Delegation dated 30 October 2015 and 23 November 2015.
On 25 August 2017 Ms Vincent completed an Income and Assets form on behalf of her father.[5] Pursuant to the Act, a person may receive subsidies to assist them with the residential aged care fees. The Act sets out the method for what subsidy if any is payable, and takes a number of matters into account.[6]
[5] Exhibit 2, T Documents, T7, pages 72 – 99, Income and Assets form dated 25 August 2017.
[6] Sections 44-26A and 44-26C, the Act.
Income and asset information is used to calculate aged care fees and charges and also the amount of government assistance an aged care provider will receive from the Government on a person’s behalf. The information provided to the DVA by Ms Vincent was that:[7]
(a)Mr Vincent was to be admitted to residential care on 29 August 2017;
(b)the net market value of his household contents and personal effects was $10,000; and
(c)he owned the Hollywell Property which was occupied by his wife.
[7] Exhibit 2, T Documents, T7, pages 72 – 99, Income and Assets form dated 25 August 2017.
The DVA determined that the value of the Hollywell Property was to be excluded from Mr Vincent’s residential aged care fees assessment because Ms Vincent was a “close relation” of Mr Vincent and had occupied the home for the past 5 years.[8]
[8] Sections 44-26A(6)(c), the Act.
On 29 November 2017 Ms Vincent purchased a unit at Paradise Point, as joint tenants with her parents, for $420,000 (“Paradise Point Property”).[9] The intention was that that the Hollywell Property would be sold and some of the proceeds of sale would be used to purchase the Paradise Point Property. Ms Vincent and her mother intended to live in the Paradise Point Property given that her father had gone into aged care and the Hollywell Property was too big and costly for them to maintain.[10]
[9] Exhibit 2, T Documents, T8, pages 100 – 120, Contract for Residential Lot dated 29 November 2017.
[10] Exhibit 2, T Documents, T1.1, pages 6 – 8, Attachment: Statement of the Applicant.
On 10 December 2017 Ms Vincent completed an Income and Assets form on behalf of her mother which indicated that:[11]
(a)Mr Vincent currently lived in aged care;
(b)her mother was to be admitted to a permanent residential care facility on an unknown date;
(c)the net market value of her household contents and personal effects was $10,000;
(d)her mother has a 50% share in the Hollywell Property; and
(e)the current market value of the Hollywell home is $500,000.
[11] Exhibit 2, T Documents, T9, pages 154 – 179, Income and Assets form dated 10 December 2017.
In early January 2018 Ms Vincent’s mother became unexpectedly unwell. As a result of her deteriorated condition, Mrs Vincent was obliged to move into residential aged care. Mrs Vincent never moved into the Paradise Point Property with her daughter.
On 31 January 2018 the Paradise Point Property settled and the Hollywell Property was sold for $650,000.[12] The Paradise Point Property was purchased with proceeds from the sale of the Hollywell property.[13]
[12]Exhibit 2, T Documents, T12 – T12.2, pages 196 – 199, Letter from ABKJ Lawyers to Mr and Mrs Vincent dated 1 February 2018.
[13]Exhibit 2, T Documents, T11 – T11.3, pages 183 – 195, Letter from ABKJ Lawyers to Mr and Mrs Vincent dated 1 February 2018.
Ms Vincent informed the DVA of the changes to her parent’s residential details on 14 February 2018.[14] As a result of this information the DVA reviewed Mr Vincent’s aged care subsidy entitlements and service pension rate. On 7 March 2018 the DVA determined that the Paradise Point Property was not an exempt asset and needed to be included in Mr Vincent’s aged care fees asset assessment. Mr Vincent’s service pension was also to be reduced.
[14]Exhibit 2, Supplementary T Documents, ST1, pages 215 – 223, Letter from DVA to Mr and Mrs Vincent dated 7 March 2018.
Ms Vincent requested a reconsideration of the determination dated 7 March 2018 on her father’s behalf on the basis that she was a “protected person” pursuant to section 44-26A(6)(c) of the Act.[15]
[15]Exhibit 2, T Documents, T13, page 200, Email from Applicant to DVA Requesting Review of Determination dated 29 August 2018.
The Department of Health provided DVA policy advice regarding protected person provisions and the exclusion of the asset value of new properties from an aged care fees assessment on 14 November 2018.[16]
[16] Exhibit 2, T Documents, T14, pages 201 – 204, Email chain between DVA and Department of Health.
On 22 November 2018, the Respondent affirmed the determination dated 7 March 2018 on the basis that Ms Vincent was no longer a ‘protected person’ for the purposes of the Act.[17] The result of this affirmation was that the value of the Paradise Point Property could not be excluded from the asset test assessment.
[17] Exhibit 2, T Documents, T15, pages205 – 209, Reviewable Decision dated 22 November 2019.
Ms Vincent has sought a review of the Respondent’s decision by this Tribunal.[18]
[18] Exhibit 2, T Documents, T1 – T1.10, pages 5 – 21, Application for Review of a Decision dated 21 February 2019.
ISSUES FOR DETERMINATION
The Tribunal has to determine whether pursuant to section 44-26A(6)(c) of the Act, the Paradise Point Property is an assessable asset.
Section 44-26A provides relevantly:
The value of a person's assets
(1) Subject to this section, the value of a person's assets for the purposes of section 44-22 is to be worked out in accordance with the Subsidy Principles.
…
(6) In working out the value at a particular time of the assets of a person who is or was a * homeowner, disregard the value of a home that, at the time, was occupied by:
…
(c) a * close relation of the person who:
(i) had occupied the home for the past 5 years; and
(ii)was eligible to receive an * income support payment at the time.
To satisfy the exemption provided for in section 44-26A(6)(c) of the Act, Ms Vincent would need to demonstrate:
(a)she was a close relation[19] of her father;
(b)had occupied the Paradise Point Property for the past 5 years; and
(c)was eligible to receive an income support payment.
[19] "close relation" has the meaning given in section 44-26B of the Act which includes a child.
EVIDENCE
Prior to, and during, the purchase of the Paradise Point Property, Ms Vincent was a “protected person” under the Act and the value of the Hollywell Property was excluded from her father’s aged care subsidy and fee assessment.
Ms Vincent explained to the Tribunal that:
(a)once her father had gone into care, she and her mother decided they should downsize. Ms Vincent said the Hollywell Property was run down and they were unable to maintain the property;
(b)after several months of searching, Ms Vincent says they found a new home that would suit them;
(c)before purchasing the Paradise Point Property, and before her mother became ill, she contacted My Aged Care for advice. The Tribunal notes that the Income and Assets form provided by the Government for Ms Vincent to complete on her parents’ behalf informs people that they can contact My Aged Care for general information on fees and charges applying to aged care.
The My Aged Care website states that it is:[20]
[20] My Aged Care website,
…starting point to access Australian Government-funded aged care services. The phone line and website can help older Australians, their families and carers to get the help and support they need.
My Aged Care provides:
· information on the different types of aged care services available
·an assessment of needs to identify eligibility and the right type of care
·referrals and support to find service providers that can meet your needs
·information on what you might need to pay towards the cost of your care.
(d)Ms Vincent says she told the person from My Aged Care of their intention to purchase a new property and was assured that it was fine. Ms Vincent took this to mean that it would have no impact on the current financial situation of her parents. There is no record of this conversation available;
(e)when Ms Vincent’s mother became ill there were no suitable aged care home packages available;
(f)Mr Vincent is a World War II veteran and has always been law abiding;
(g)because of the decision that has been made, there was a backlog of aged care fees of approximately $22,000 that then had to be paid (which they were not prepared for);
(h)she now has to pay $3,300 per month in aged care fees for her parents;
(i)the aged care fees are being paid presently out of the remaining settlement fees from the Hollywell Property. Once those funds are exhausted Ms Vincent will have to sell the Paradise Point Property in order to pay for her parents aged care;
(j)they feel as though the government “doesn’t care”;
(k)she invested her life savings in the Paradise Point Property; and
(l)they always “believed the DVA would look after” her father.
CONSIDERATION
It is not in dispute that Ms Vincent was a close relation to her father and, at the time of the decision, eligible to receive an income support payment.
It was also not in dispute at the hearing that Ms Vincent had not occupied the Paradise Point Property for the past 5 years and that section 44-26A(6)(c) therefore has no application to Mr Vincent’s circumstances.
There is no discretion provided for in the Act, and hence the value of the Paradise Point Property must be taken into account in determining the value of Mr Vincent’s assets for the purposes of his residential aged care fees asset assessment.
The Tribunal acknowledges the Applicant’s frustration and disappointment with this decision. Ms Vincent was also, understandably, unhappy that if she had received the right advice from My Aged Care, they would not have proceeded with the purchase of the Paradise Point Property. Ms Vincent may consider lodging a complaint with the DVA and My Aged Care if she considers that she has suffered a detriment as a result of relying on My Aged Care’s advice. Ms Pendle, advocate for the Respondent, kindly agreed to provide Ms Vincent with relevant contact information if she wishes to lodged a formal complaint.
DECISION
The decision under review is affirmed.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 22 November 2019

Date of hearing:
8 November 2019

Applicant’s representative: Ms Julie Vincent

Advocate for the Respondent: Ms Leisa Pendle

Solicitors For the Respondent: Australian Government Solicitor

[2019] AATA 4950

22 November 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Reliance

Procedural Fairness

Standing

Date of hearing:	8 November 2019
Applicant’s representative:	Ms Julie Vincent
Advocate for the Respondent:	Ms Leisa Pendle
Solicitors For the Respondent:	Australian Government Solicitor